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Francine Lomeli v. Costco Wholesale Corporation et al

April 20, 2012


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge



On October 28, 2011, Defendants Costco Wholesale Corporation and Keith Paget removed this action from state court pursuant to 28 U.S.C. §§ 1331, 1441(b). Pending before the Court are Defendants' motion to dismiss and Plaintiff Francine Lomeli's motion to remand. Fundamental to the resolution of both motions is whether section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, preempts Plaintiff's state law claims. For the reasons set forth below, the Court finds that section 301 preempts Plaintiff's first claim for breach of the implied covenant of good faith and fair dealing and DISMISSES the claim for failure to exhaust collective bargaining grievance procedures. The Court exercises supplemental jurisdiction over Plaintiff's claims for false imprisonment and defamation and DISMISSES these claims as time-barred. Finally, the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining claims for intentional infliction of emotional distress and for violation of California Business and Professions Code § 17200 and REMANDS these claims to the state court pursuant to 28 U.S.C. § 1367(c).


Beginning in 2004, Plaintiff worked for Defendant Costco as a "food court employee" at the company's Chula Vista, California location. [Compl., Doc. No. 1-1 at ¶ 5.]*fn1 Her duties included completing cash transactions for items purchased in the food court. [See id. ¶ 8.] As an hourly employee, Plaintiff was a member of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 542. [Rodriguez Decl. to Opp. to Motion to Remand, Doc. No. 5-1 at ¶¶ 3-4.] As such, the terms and conditions of her employment were governed by a collective bargaining agreement (the "CBA") between Costco and the union. [Id.; see CBA, Ex. A. to Rodriguez Decl.]*fn2

On August 13, 2010, Plaintiff charged a customer for several food items, but voided the transactions and sent the customer inside the Costco store to pay after the customer indicated he did not have enough cash for the entire purchase. [Id. ¶ 8.] Once the customer paid with his credit card, he returned, showed Plaintiff his receipt, and paid for an additional item with cash. [Id. ¶¶ 9-12.]

On August 16, 2010, Plaintiff was summoned to the warehouse manager's office, where Defendant Paget, Costco's Regional Loss Prevention Manager, and two others waited. [Id. ¶¶ 3, 14-16.] Paget indicated he was investigating "hidden shrink," which Plaintiff understood to mean theft of cash, and began to "interrogate" her for the alleged theft of $31.48 related to the voided transaction on August 13, 2010. [Id. ¶¶ 18-19.] Paget stated that the customer had not paid for any food court items inside the Costco store, and surveillance cameras showed Plaintiff taking $31.48 from the customer while charging him only $1.67. [Id. ¶¶ 21-22.]

Paget continued to aggressively "interrogate" Plaintiff for two hours "despite her cries and explanations." [Id. ¶ 26.] Over the course of the interview, Paget threatened her with arrest and continually sought a written confession, which Plaintiff refused to provide. [Id. ¶ 29.] Plaintiff vehemently denied the accusation, felt embarrassed, and felt trapped inside the office because Paget and another man blocked her access to the office door. [Id. ¶¶ 24-25.] Plaintiff "finally grabbed her personal belongings[,] ran out of the office, and was humiliated [by] the interrogation after two hours [and] by the crowd of employees and supervisors gathered near the small office. She was crying while the onlookers were staring at her, some of them laughing." [Id. ¶ 32.]

Costco then suspended Plaintiff for three days without pay for "acts of dishonesty towards the company, customers, and fellow employees." [Id. ¶ 33.] When Plaintiff returned to work, she was told that she had been cleared by another investigator, who had reviewed the matter and concluded that the customer had indeed paid for the food court items when he went inside the Costco store. [Id. ¶ 34.]

On August 19, 2011, Plaintiff filed suit against Defendants for (1) breach of the covenant of good faith and fair dealing, (2) defamation (slander), (3) defamation (slander per se), (4) false imprisonment, (5) intentional infliction of emotional distress ("IIED"), and (6) violation of California Business and Professions Code § 17200. Defendants now move to dismiss Plaintiff's claims on a variety of alternative grounds, including preemption under section 301 of the Labor Management Relations Act. Plaintiff opposes dismissal and requests that the Court remand this action to state court.


A suit may be removed to federal court only if it could have been brought there originally.

28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Absent diversity of citizenship, federal question jurisdiction is required. Caterpillar, Inc., 482 U.S. at 392. Under the "complete preemption doctrine," once an area of state law has been completely preempted, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and is removable as arising under federal law. Id. at 393. "Controversies involving collective bargaining agreements constitute one such area." Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir. 1991) (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988)).

Section 301 of the Labor Management Relations Act provides federal jurisdiction over "suits for violation of contracts between an employer and a labor organization." 29 U.S.C. § 185(a). Federal law under section 301 governs suits for breach of a collective bargaining agreement and "entirely displaces any state claim based on a CBA, as well as any state claim whose outcome depends on interpretation of the terms of a CBA." Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987); see also Cook v. Lindsay Olive Growers, 911 F.2d 233, 237 (9th Cir. 1990); Miller v. AT&T Network Sys., 850 F.2d 543, 545 (9th Cir. 1988). "A state law claim is not preempted under § 301 unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute." Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 693 (9th Cir. 2001). "If the plaintiff's claim cannot be resolved without interpreting the applicable CBA . . . it is preempted." Id. at 691. Alternatively, "if the claim may be litigated without reference to the rights and duties established in a CBA . . . it is not preempted." Id. "The plaintiff's claim is the touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the plaintiff's claim." Id. at 691. Section 301 preemption does not follow "simply because the court may have to consult the CBA to evaluate it; 'looking to' the CBA merely to discern that none of its terms is reasonably in dispute does not require preemption." Id. at 692.

When state law claims are preempted, they must either be treated as section 301 claims or dismissed as preempted by federal law. Allis-Chalmers Corp. ...

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